IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MARK WILLIAM FRANKLIN, Plaintiff/Appellant,

v.

JASON JOHN CLEMETT, et al., Defendants/Appellees.

No. 1 CA-CV 15-0194

Appeal from the Superior Court in Maricopa County

No. CV2010-033437

The Honorable Dawn M. Bergin, Judge

AFFIRMED

COUNSEL

Knapp & Roberts, P.C., Scottsdale

By David L. Abney

Co-Counsel for Plaintiff/Appellant

Harris, Powers & Cunningham, P.L.L.C., Phoenix

By Joseph D’Aguanno, Frank I. Powers

Co-Counsel for Plaintiff/Appellant

Karen L. Lugosi, P.C., Phoenix

By Karen L. Lugosi

Co-Counsel for Plaintiff/Appellant
2

Jones, Skelton & Hochuli, P.L.C., Phoenix

By William D. Holm, Jonathan P. Barnes, Jr.

Co-Counsel for Defendants/Appellees

Hill, Hall & DeCiancio, P.L.C., Phoenix

By R. Corey Hill, Ginette M. Hill, Christopher Robbins

Co-Counsel for Defendants/Appellees

OPINION

Presiding Judge Patricia K. Norris delivered the opinion of the Court, in 

which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.

N O R R I S, Judge:

¶1 The controlling issues in this case are whether the affirmative 

defense of intoxication established by Arizona Revised Statutes (“A.R.S.”)

section 12-711 (2016) violates the contributory negligence and antiabrogation provisions of the Arizona Constitution, conflicts with Arizona’s 

comparative fault statutes, or is unconstitutionally vague. We hold A.R.S. § 

12-711 is not unconstitutionally or statutorily infirm and, accordingly, 

affirm the superior court’s judgment.

FACTS AND PROCEDURAL BACKGROUND1

¶2 On February 14, 2009, Plaintiff/Appellant Mark William 

Franklin and Defendants/Appellees, Jason John Clemett, Jason’s wife, and 

their friend Daniel Blanchard (collectively, “Defendants”) were spectators 

at a hockey game. During the game, Franklin began to yell profanities and 

insults at the defendants. Franklin, who was intoxicated, eventually 

climbed over several rows of seats and stopped two rows above where the 

Defendants were seated. Blanchard felt a “thud” on his head. His head 

began to hurt, and he discovered he was bleeding. Blanchard turned 

around and saw Franklin making obscene gestures and acting “out of 

control.” Franklin started to walk back to his seat, but then returned to 

where he had been standing above the Defendants. To try to stop Franklin

 

1We view the trial evidence in the light most favorable to 

sustaining the jury’s verdict. Gonzales v. City of Phoenix, 203 Ariz. 152, 153, 

¶ 2, 52 P.3d 184, 185 (2002). 
FRANKLIN v. CLEMETT et al.

Opinion of the Court

3

from moving any closer to them, Blanchard punched Franklin in the head.

Franklin then spit on the Clemetts, and Jason Clemett responded by 

punching Franklin twice in the head.

¶3 Franklin sued the Defendants, as relevant here, for 

negligence. At trial, the Defendants argued Franklin had provoked the 

altercation and was 100% at fault under comparative fault principles. Over 

Franklin’s objection, the Defendants also raised the affirmative defense of 

intoxication under A.R.S. § 12-711 (“intoxicating liquor defense”). Section 

12-711 reads as follows:

In any civil action, the finder of fact may find the 

defendant not liable if the defendant proves that 

the claimant or, if the claimant is an heir or the 

estate of a deceased person, the decedent was 

under the influence of an intoxicating liquor or 

a drug and as a result of that influence the 

claimant or decedent was at least fifty per cent 

responsible for the accident or event that caused 

the claimant’s or decedent’s harm.

¶4 Substantially tracking the language of A.R.S. § 12-711, the 

superior court included the following instruction in its final instructions to 

the jury:

If Jason Clemett or Daniel Blanchard proves that 

Plaintiff Mark Franklin was under the influence 

of an intoxicating liquor, and as a result of that 

influence, Mark Franklin was at least fifty 

percent (50%) responsible for the incident or 

event that caused his injuries, you may find 

Defendant Jason Clemett and Defendant Daniel 

Blanchard not liable to Mark Franklin. 

The jury subsequently returned a general verdict in the Defendants’ favor.
FRANKLIN v. CLEMETT et al.

Opinion of the Court

4

DISCUSSION2

I. Section 12-711 and Article 18, Section 5, of the Arizona Constitution

¶5 Franklin argues the superior court should not have instructed 

the jury on the intoxicating liquor defense because A.R.S. § 12-7113 violates 

Article 18, § 5 of the Arizona Constitution. According to Franklin, A.R.S. § 

12-711 is unconstitutional because it compels or at least invites a jury to find 

a defendant not liable based on proof that the plaintiff was 50% at fault even 

though Article 18, § 5 grants the jury unlimited discretion to determine the 

existence and effect of a plaintiff’s contributory negligence. Exercising de 

novo review, we hold A.R.S. § 12-711 does not violate Article 18, § 5. See 

State ex rel. Montgomery v. Rogers, 237 Ariz. 419, 421, ¶ 8, 352 P.3d 451, 453 

(App. 2015) (appellate court reviews de novo whether jury instruction 

correctly states the law) (citation omitted); Niehaus v. Huppenthal, 233 Ariz. 

195, 197, ¶ 5, 310 P.3d 983, 985 (App. 2013) (appellate court reviews 

constitutionality of a statute de novo). 4

 

2In a separate memorandum decision, Franklin v. Clemett et al., 

1 CA-CV 15-0194 (Ariz. App. October 25, 2016), filed simultaneously with 

this opinion, see Ariz. R. Sup. Ct. 111 and Arizona Rule of Civil Appellate 

Procedure (“ARCAP”) 28, we reject Franklin’s remaining arguments and 

provide additional factual and procedural history. 

3We cite to the current version of all statutes cited in this 

opinion because the Legislature has not materially amended them since the 

time of the altercation, the event giving rise to this action. 

4Given the general verdict, Defendants argue we do not need 

to address the constitutionality of A.R.S. § 12-711 because the jury could 

have found for them for reasons unrelated to the intoxicating liquor 

defense. When, as in this case, a party is challenging the legality of a jury 

instruction under Article 18, § 5, Arizona appellate courts have addressed 

the challenge even though the jury returned a general verdict and its verdict 

could have been based on other theories or defenses. See Estate of Reinen v. 

N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 290-91, ¶¶ 26-28, 9 P.3d 314, 321-22 

(2000) (defense verdict vacated and remanded for new trial after jury 

improperly instructed on assumption of risk in medical malpractice action; 

court would not assume erroneous instruction did not affect the jury’s 

deliberations); Salt River Project Agric. Improvement & Power Dist. v. 

Westinghouse Elec. Corp., 176 Ariz. 383, 861 P.2d 668 (App. 1993) (addressing 
FRANKLIN v. CLEMETT et al.

Opinion of the Court

5

¶6 “The defense of contributory negligence or of assumption of 

risk shall, in all cases whatsoever, be a question of fact and shall, at all times, 

be left to the jury.” Article 18, § 5. As our supreme court has explained, this 

provision was designed to ameliorate the harsh consequences of the 

doctrine of contributory negligence—under which a negligent plaintiff 

could be barred from any recovery even if his negligence was slight—by 

requiring the jury to be the sole arbiter of the existence or nonexistence of 

contributory negligence. Hall v. A.N.R. Freight Sys., Inc., 149 Ariz. 130, 132-

33, 717 P.2d 434, 436-37 (1986). 

¶7 Article 18, § 5 does not guarantee the existence of contributory 

negligence as a defense, however. Id. at 134, 717 P.2d at 438. Instead, Article 

18, § 5 is a procedural guarantee, and prescribes the procedure that must be 

followed if contributory negligence or assumption of risk is asserted as a 

defense. Id. at 134-35, 717 P.2d at 438-39. Thus, “whenever and in whatever

form the [contributory negligence] defense is permitted to exist, a fact 

question arises that ’shall, at all times, be left to the jury.’” Williams v. Thude, 

188 Ariz. 257, 259, 934 P.2d 1349, 1351 (1997) (emphasis added).

Accordingly, the Legislature may modify or abolish contributory 

negligence. Hall, 149 Ariz. at 135, 717 P.2d at 439 (citation omitted).

¶8 In 1984, the Legislature enacted the Uniform Contribution 

Among Tortfeasors Act (“UCATA”) and adopted comparative fault. Id. at 

131, 717 P.2d at 435; 1984 Ariz. Sess. Laws, ch. 237, § 1 (codified at A.R.S. § 

12-2505 (2016)). In so doing, the Legislature “strip[ped] contributory 

negligence of its obnoxious common law consequences,” but retained the 

“idea of contributory fault.” Hall, 149 Ariz. at 135, 717 P.2d at 439. As the 

supreme court explained in Hall, comparative negligence is a way of 

dealing with a plaintiff’s contributory fault, and contributory and 

comparative negligence operate in tandem. Id. at 135-36, 717 P.2d at 439-40. 

While a jury 

can no longer apply contributory negligence as 

an automatic bar to recovery, the question of 

whether contributory negligence exists is still a 

threshold issue which must be resolved by the 

jury. The application of comparative negligence 

is not triggered until the jury determines that 

 

constitutionality of erroneous instruction under Article 18, § 5 even though 

jury returned general verdict for the defense and could have found for 

prevailing party on basis not affected by the error).
FRANKLIN v. CLEMETT et al.

Opinion of the Court

6

contributory negligence exists. Thus the 

existence of contributory negligence is a 

prerequisite to the exercise of comparative 

negligence. The jury’s constitutionally 

protected right to determine the existence or 

nonexistence of contributory negligence, when 

asserted, remains the threshold determination 

triggering application of [UCATA].

Id. at 136, 717 P.2d at 440 (citation omitted). Therefore, in a negligence case, 

“the jury is the sole arbiter of fact and law as to the defenses of contributory 

and comparative negligence.” Gunnell v. Ariz. Pub. Serv. Co., 202 Ariz. 388, 

394, ¶ 23, 46 P.3d 399, 405 (2002) (citation omitted).

¶9 In accordance with the foregoing principles, Arizona courts

have consistently held that statutes barring liability under statutory or 

common law principles based on a plaintiff’s contributory negligence or 

assumption of risk violate Article 18, § 5. Id. at 394-95, ¶¶ 24-25, 46 P.3d at 

405-06 (Legislature may not negate Article 18, § 5 by decreeing that “a 

negligent actor whose conduct was a cause of injury was the sole cause of 

the injurious event”); City of Tucson v. Fahringer, 164 Ariz. 599, 601-02, 795 

P.2d 819, 821-22 (1990) (statute may not provide that “antecedent conduct”

of person injured is absolute bar to recovery of damages from person 

otherwise liable for the injury under either statutory or common law 

principles); Schwab v. Matley, 164 Ariz. 421, 423-25, 793 P.2d 1088, 1090-92 

(1990) (same); Sonoran Desert Investigations, Inc., v. Miller, 213 Ariz. 274, 141 

P.3d 754 (App. 2006) (same). Similarly, jury instructions which compel, 

direct, or require the jury to find for the defendant if it finds the plaintiff 

was negligent or assumed the risk also violate Article 18, § 5. Salt River 

Project, 176 Ariz. at 386, 861 P.2d at 671.

¶10 In contrast, statutes that do not bar a negligent plaintiff from 

all recovery, but allow the jury to exercise discretion in deciding the 

existence and effect of a plaintiff’s negligence will not run afoul of Article 

18, § 5. See Williams, 188 Ariz. at 259, 934 P.2d at 1351 (although legislature 

may eliminate contributory negligence “altogether,” Article 18, § 5 requires 

that “whenever and in whatever form the defense is permitted to exist, a 

fact question arises that ‘shall, at all times, be left to the jury’”). Likewise,

jury instructions that are “permissive and leave the plaintiff’s recovery to 

the discretion of the jury if it finds that the plaintiff was negligent or 

assumed the risk” also pass muster under Article 18, § 5. Salt River Project, 

176 Ariz. at 386, 861 P.2d at 671 (quoting permissive instructions, such as 

“‘[p]laintiff may not be entitled to recover and your verdict may be for the 
FRANKLIN v. CLEMETT et al.

Opinion of the Court

7

defendant,’” “‘[y]our verdict may, but need not be, in favor of Defendants’”)

(citations omitted).

¶11 On its face, A.R.S. § 12-711 is permissive. Contrary to 

Franklin’s argument, a fact finder “may,” but is not compelled to, find a

defendant not liable if it finds the plaintiff was under the influence of an 

intoxicating liquor and as a result was at least 50% responsible for the event 

that caused his or her harm. Section 12-711 does not, therefore, violate 

Article 18, § 5, and the superior court’s instruction to the jury was proper. 

¶12 Section 12-711 also does not, as Franklin argues, 

unconstitutionally “invite” the jury to render a defense verdict by focusing 

its attention on the plaintiff’s conduct and “imply[ing] to jurors that there 

is something significant about a 50% finding.” Although A.R.S. § 12-711

calls the jury’s attention to the plaintiff’s conduct, it does not attempt to 

control the jury’s decision-making or deprive a plaintiff of a recovery. At 

most, it encourages the jury to consider the plaintiff’s conduct in deciding 

whether to award the plaintiff damages under comparative fault principles. 

As our supreme court recognized in discussing a statute that works in the 

same manner, such an attempt, by itself, does not violate Article 18, § 5. 

¶13 Specifically, in Williams, 188 Ariz. at 260, 934 P.2d at 1352, our 

supreme court addressed how a jury should be instructed under A.R.S. § 

12-2505(A) when there is evidence that the plaintiff’s willful or wanton 

conduct contributed to the plaintiff’s injuries. In addition to implementing

comparative fault, that statute precludes comparative negligence in favor 

of a plaintiff who has acted willfully or wantonly. See A.R.S. § 12-2505(A)

(claimant has “no right to comparative negligence” if claimant has

“intentionally, willfully or wantonly caused or contributed to the injury or 

wrongful death”). Thus, similar to A.R.S. § 12-711, A.R.S. § 12-2505(A) calls 

a jury to consider a plaintiff’s conduct under comparative fault principles.

The supreme court rejected the argument that in calling the jury’s attention 

to the plaintiff’s conduct, A.R.S. § 12-2505(A) violated Article 18, § 5. The 

court explained: 

[The statute] does not purport to exterminate all 

species of contributory negligence . . . . 

Moreover, the statute does not say that the 

wantonly negligent plaintiff is barred from all 

recovery . . . . Instead, it only attempts to deprive 

such a plaintiff of any benefits that might flow 

from an application of comparative principles. 

At best, then, the statute can be said to have 
FRANKLIN v. CLEMETT et al.

Opinion of the Court

8

merely modified the contributory negligence 

defense.

Williams, 188 Ariz. at 259, 934 P.2d at 1351.

¶14 The court then approved an instruction that told the jurors

“that even though they should not compare fault, they are free to do 

whatever they choose with respect to the plaintiff’s conduct”:

If you find that Plaintiff willfully or wantonly 

caused Plaintiff’s injury, and that Defendant 

was at fault (but not willfully or wantonly), then 

you should not determine relative degrees of 

fault, however you may find for the Defendant 

or for the Plaintiff as you see fit. 

Id. at 258-60, 934 P.2d at 1350-52.

¶15 Similar to A.R.S. § 12-2505(A), A.R.S. § 12-711 invites the jury

to consider the plaintiff’s conduct under comparative fault principles, but 

it does not directly or indirectly tell the jury it must find the plaintiff’s 

conduct bars all recovery.5 Accordingly, A.R.S. § 12-711 does not violate 

Article 18, § 5. 

II. Section 12-711 and Article 18, Section 6, of the Arizona Constitution

¶16 Franklin also argues A.R.S. § 12-711 encourages a jury to deny 

a plaintiff recovery if it finds the plaintiff is 50% at fault and, thus, the 

statute effectively abrogates a plaintiff’s right of recovery in violation of the 

anti-abrogation clause in Article 18, § 6 of the Arizona Constitution. Article 

18, § 6 provides that “[t]he right of action to recover damages for injuries 

shall never be abrogated, and the amount recovered shall not be subject to 

 

5At oral argument in this court, Franklin argued A.R.S. 

§ 12-2505(A), which focuses on willful and wanton conduct by a plaintiff, is 

not comparable to A.R.S. § 12-711’s focus on a plaintiff’s intoxication 

because willful or wanton conduct is akin to intentional misconduct and 

not a form of negligence. Our supreme court has recognized, however, that 

willful or wanton conduct is a form of negligence. Williams, 188 Ariz. at 259, 

934 P.2d at 1351; DeElena v. S. Pac. Co., 121 Ariz. 563, 566, 592 P.2d 759, 762 

(1979); see also A.R.S. § 12-2506(F)(2) (2016) (defining fault under UCATA as 

including “negligence in all its degrees”). Thus, A.R.S. § 12-2505(A) does 

address negligent conduct by a plaintiff and, accordingly, is an appropriate 

analogue to A.R.S. § 12-711.
FRANKLIN v. CLEMETT et al.

Opinion of the Court

9

any statutory limitation . . . .” Exercising de novo review, see supra ¶ 5, we 

hold the instruction did not violate Article 18, § 6.

¶17 Article 18, § 6 prohibits the abrogation of common law 

negligence actions. Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 387-

88, ¶ 34, 296 P.3d 42, 50-51 (2013) (citation omitted). The constitutional 

provision does not, however, prevent the Legislature from regulating a 

common law negligence claim as long as it leaves reasonable alternatives 

permitting a claimant to bring such a claim. Id. at 388, ¶¶ 34-35, 296 P.3d at 

51 (statute setting qualification standards for admissibility of expert 

testimony on standard of practice or care did not violate Article 18, § 6)

(citations omitted); Romero v. Sw. Ambulance, 211 Ariz. 200, 205, ¶ 12, 119 

P.3d 467, 472 (App. 2005) (Article 18, § 6 permits regulation) (citations 

omitted). A statute abrogates a cause of action if it bars a cause of action 

before it can be brought. Watts v. Medicis Pharm. Corp., 239 Ariz. 19, 27, ¶ 26, 

365 P.3d 944, 952 (2016) (citation omitted). 

¶18 As we explained in Romero, A.R.S. § 12-711 does not bar a 

plaintiff from pursuing any claim, remove the question of liability from the 

jury, or require a jury to take a particular action. Romero, 211 Ariz. at 205, ¶ 

11, 119 P.3d at 472 (citations omitted). Section 12-711 does not, therefore, 

violate Article 18, § 6.

¶19 Franklin nevertheless argues Romero failed to appreciate that 

A.R.S. § 12-711 “effectively” abrogates a claimant’s claim because it 

instructs the jury that if it finds what Franklin characterizes as an arbitrary 

percentage of fault, 50%, it may deprive the claimant of any recovery. See 

generally Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 106, 692 P.2d 280, 285 

(1984) (Legislature “may not, under the guise of ‘regulation,’ so affect the 

fundamental right to sue for damages as to effectively deprive the claimant 

of the ability to bring the action”) (citation omitted).

¶20 A statute does not “effectively” abrogate a claim, however, by 

making it more difficult for the claimant to obtain a recovery or even when,

in the claimant’s view, it may weaken the claimant’s case. See State Farm Ins. 

Co. v. Premier Manufactured Sys., Inc., 217 Ariz. 222, 229, ¶¶ 35-37, 172 P.3d 

410, 417 (2007) (rejecting argument that A.R.S. § 12-2506, which abolished 

joint and several liability in strict products liability cases, violates Article 

18, § 6; abolishing joint and several liability in such cases will not make it 

impossible for the finder of fact to allocate fault among the participants in 

the chain of distribution of a defective product, even though it may be 

difficult to do so in some circumstances); Governale v. Lieberman, 226 Ariz. 

443, 447-48, ¶¶ 8-11, 250 P.3d 220, 224-25 (App. 2011) (statute limiting 
FRANKLIN v. CLEMETT et al.

Opinion of the Court

10

potential expert witnesses a plaintiff may use did not effectively abrogate 

plaintiff’s right of recovery even if, from plaintiff’s perspective, it weakened 

his case by preventing him from using his chosen expert). 

¶21 Here, as discussed, A.R.S. § 12-711 focuses on a plaintiff’s 

conduct under comparative fault principles. But it does not prevent a 

plaintiff from obtaining a recovery or “so affect the fundamental right to 

sue for damages as to effectively deprive the claimant of the ability to bring 

the action.” Barrio, 143 Ariz. at 106, 692 P.2d at 285 (citation omitted). 

Accordingly, as we held in Romero, A.R.S. § 12-711 does not violate Article 

18, § 6.

III. Section 12-711 and UCATA

¶22 Franklin argues A.R.S. § 12-711 conflicts with UCATA’s 

requirement that the jury “shall” assess the percentage of fault of each 

person who contributed to the alleged injury, see A.R.S. § 12-2506(B), 

because it “acts as a trigger” for the jury to assess all fault against the 

plaintiff, even if the plaintiff was only 50% at fault. As discussed, however,

A.R.S. § 12-711 is permissive. See supra ¶¶ 10-11. Thus, the statute does not 

restrict the jury’s power to consider and assess the fault of all those who 

contributed to the alleged injury.

IV. Section 12-711 and Vagueness 

¶23 Franklin argues A.R.S. § 12-711 is void for vagueness because 

the statute fails to define “under the influence” of an intoxicating liquor and 

thus, a jury is left to speculate on the meaning of “under the influence.”

Section 12-711, however, is not unconstitutionally vague.

¶24 A statute is not void for vagueness simply because it does not 

define its terms. Rather, a statute is void for vagueness if it does not give a 

person of “ordinary intelligence a reasonable opportunity to know what is 

prohibited and fails to contain explicit standards of application to prevent 

arbitrary and discriminatory enforcement.” State v. Poshka, 210 Ariz. 218, 

220, ¶ 5, 109 P.3d 113, 115 (App. 2005) (quotations omitted) (citing Grayned 

v. City of Rockford, 408 U.S. 104, 108–09, 92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d 

222, 227 (1972)); State v. Brown, 207 Ariz. 231, 237, ¶ 16, 85 P.3d 109, 115

(App. 2004); see Verma v. Stuhr, 223 Ariz. 144, 152, ¶ 29, 221 P.3d 23, 31 (App. 

2009) (statute must provide person of ordinary intelligence notice of 

conduct prohibited or required). Section 12-711 meets these requirements.

¶25 In 1927, Arizona’s DUI laws began to use the phrase “under 

the influence.” Hasten v. State, 35 Ariz. 427, 430-31, 280 P. 670, 671 (1929)
FRANKLIN v. CLEMETT et al.

Opinion of the Court

11

(discussing Laws 4th Sp. Sess. 1927, c. 2, subc. 6, § 1); see also A.R.S. § 28-

1381(A) (2012). And, in 1929, Arizona courts began to consistently interpret 

that phrase as meaning intoxicated “in the slightest degree.” Weston v. State,

49 Ariz. 183, 186-89, 65 P.2d 652, 654-55 (1937); Hasten, 35 Ariz. at 430-31, 

280 P. at 671; State v. Parker, 136 Ariz. 474, 474-75, 666 P.2d, 1083, 1083-84 

(App. 1983). Beginning with our supreme court’s decision in Hasten, 

Arizona courts have consistently recognized that people of ordinary 

intelligence are able to understand what intoxicated in the slightest degree 

means, and that a person is intoxicated in the slightest degree when that 

person “is to some degree at least less able, either mentally or physically or 

both, to exercise the clear judgment and steady hand necessary” to drive an 

automobile. Hasten, 35 Ariz. at 431, 280 P. at 671; Weston, 49 Ariz. at 187, 65 

P.2d at 654 (intoxicated in the slightest degree commonly understood as 

referring to a person “‘so affected by intoxicating liquor as not to possess 

that clearness of intellect and control of himself that he otherwise would 

have . . . . ’”) (quoting State v. Graham, 222 N.W. 909, 911 (Minn. 1929)). 

¶26 Franklin argues, however, that we should ignore the long 

established and commonly understood meaning of “under the influence,”

as intoxicated in the slightest degree, because the Legislature created that 

standard in the context of Arizona’s DUI laws and adopted that standard 

to protect the public’s safety. Although A.R.S. § 12-711 is neither a DUI law 

nor a public safety statute, Franklin’s argument ignores the essential point 

recognized by our supreme court beginning with Hasten—that “under the 

influence” is commonly understood to mean intoxicated in the slightest 

degree. Further, Franklin has not demonstrated that this common 

understanding differs depending on context. 

¶27 Finally, Franklin argues “under the influence” is void for 

vagueness because it may mean different things to different people.

6 As 

long as a statute allows a person of ordinary intelligence to reasonably 

understand what is prohibited or required and does not allow for arbitrary 

or discriminatory enforcement, it will not be considered unconstitutionally 

vague even if it is susceptible to different interpretations. State v. Putzi, 223 

 

6For example, Franklin cites Black’s Law Dictionary (10th ed. 

2014) for the definition of “under the influence,” as “deprived of clearness 

of mind and self-control because of drugs or alcohol.” Franklin also cites

other definitions found in non-legal dictionaries: “affected by alcoholic 

drink” or “drunk”; “intoxicated, especially with alcohol”; “in an intoxicated 

condition”; and “implies that one is not completely drunk.”
FRANKLIN v. CLEMETT et al.

Opinion of the Court

12

Ariz. 578, 579, ¶ 4, 225 P.3d 1154, 1155 (App. 2010) (quotations and citations 

omitted).

¶28 State v. Coulter, 236 Ariz. 270, 339 P.3d 653 (App. 2014), 

illustrates these points. There, the defendant argued the aggravating 

circumstance of “emotional harm” listed in A.R.S. § 13-701(D)(9) (2014) was 

vague because the statute did not define it and it could mean different 

things to different people. Id. at 273-74, ¶¶ 4-7, 339 P.3d at 656-57. We held 

“emotional harm” was not void for vagueness. Id. at 274, ¶ 7, 339 P.3d at 

657. We explained “emotional harm” had a commonly understood 

meaning, and observed that a statute is not vague even though it is broad 

and it may be difficult to decide whether certain marginal conduct falls 

within it. Id.

¶29 Here, as in Coulter, “under the influence” has a commonly 

understood meaning and, although different people may evaluate “under 

the influence” in different ways, that by itself does not make A.R.S. § 12-711

void for vagueness. See Putzi, 223 Ariz. at 579, ¶ 4, 225 P.3d at 1155. And, as 

we explain below, this is not a case in which the jury was presented with 

marginal conduct. The Defendants presented ample evidence from which 

the jury could have found that Franklin was “under the influence” as 

defined by our DUI statutes or by any of the other definitions cited by 

Franklin. 

V. Sufficiency of the Evidence

¶30 Franklin argues the superior court should not have instructed 

the jury on the intoxicating liquor defense because the Defendants did not 

present any competent evidence he was under the influence of an 

intoxicating liquor. In making this argument, he stresses he was not

subjected to a blood or breath test that would have measured the alcohol 

concentration of his blood, and points out that under our state DUI laws, a 

person who has a blood alcohol concentration within two hours of driving 

of .05 or less is presumed to not be under the influence. A.R.S. 

§ 28-1381(G)(1). We reject this argument for several reasons.

¶31 First, A.R.S. § 12-711 does not require proof of a person’s 

blood alcohol concentration. Second, the statutory presumption created by 

A.R.S. § 28-1381(G)(1) has no application in this case, and even if it did, the 

presumption does not limit a party from introducing other competent 

evidence showing that a person was under the influence. Indeed, A.R.S. § 

28-1381(H) expressly states that the statutory presumption “does not limit 

the introduction of any other competent evidence bearing on the question 
FRANKLIN v. CLEMETT et al.

Opinion of the Court

13

of whether or not the defendant was under the influence of intoxicating 

liquor.” 

¶32 Third, the Defendants presented ample evidence Franklin 

was under the influence of an intoxicating liquor before the altercation. At 

trial, a detective, who worked as a security guard at the arena on the night 

of the altercation and had DUI training, testified he “detected a moderate 

to strong odor” of alcohol on Franklin’s breath and that Franklin “appeared 

to be somewhat under the influence of alcohol.” The detective described 

Franklin as being in the “middle” of a spectrum of being under the 

influence. The detective also testified, without objection, that a witness to 

the altercation described Franklin as a “loud drunk.”

¶33 Another witness testified he saw Franklin drinking alcohol 

during the game and described him as being loud and obnoxious. And a 

third witness, who was sitting behind Clemett and Blanchard, testified

Franklin appeared intoxicated and exhibited no self-control.

¶34 Given this evidence, the superior court properly instructed 

the jury on the intoxicating liquor defense. A Tumbling-T. Ranches v. Flood 

Control Dist. of Maricopa Cty., 222 Ariz. 515, 533-34, ¶ 50, 217 P.3d 1220, 1238-

39 (App. 2009) (party entitled to have the jury instructed on any theory

reasonably supported by evidence) (citation omitted); State v. Johnson, 205 

Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003) (appellate court reviews 

superior court’s decision to give an instruction for abuse of discretion).

CONCLUSION

¶35 For the foregoing reasons, we affirm the superior court’s 

judgment in favor of the Defendants. As the prevailing parties on appeal, 

we award the Defendants their costs on appeal contingent upon their 

compliance with ARCAP 21.